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Partition Lawsuits - Partition Actions
Dividing Up Jointly Owned Property
Broward County Real Estate Lawyer - Florida Attorney Larry Tolchinsky
When examining the issues related to a partition lawsuit, it is important to understand that Florida real estate title and ownership is carefully protected not only by statutes passed in the Tallahassee statehouse but also by court opinions of various Florida trial and appellate courts along with rules and regulations of local government (zoning, recording of deeds, etc.). Florida is keen on protecting title to land as well as land use for both today’s needs and tomorrow’s purposes.
So when two or more people own a single piece of property, and they don’t agree on how that property should be used, their disagreement is not just between them – it’s controlled by Florida law. In Florida, joint owners can either resolve their differences or opt for a “partition action.”
“The need for partition lawsuits happens more often that you might think here in South Florida. For example, a couple who lives together but aren’t legally married may need a judgment to divide the beach condo they bought together when they split up: that’s a partition action. Or kids inherit property jointly, like a Miami waterfront property, and want to separate the ownership; they may need a judgment to do that: it’s a partition action. Another one: business partners who want to end their partnership and divvy up the assets: they’ll have a lawsuit to get a judge to sign a judgment on who gets what to file in the real estate records. It’s another example of a partition action.”
- Larry Tolchinsky
In Florida, partitioning property must comply with laws passed by the Florida legislature and organized in the Florida Statutes under Chapter 64 of the Florida Civil Practice and Procedures Code. Florida court opinions also provide guidance on how partition cases in Florida are to be handled.
Read: Florida Real Estate Partitions And Underwater Mortgages: Are They Connected?
What is a Partition Action in Florida?
Partition actions are lawsuits filed in the courthouse where the land is located; inconveniencing an owner who is many miles away from the property is seen as less important to Florida lawmakers than having the lawsuit over the land’s ownership being heard in the county where the land exists and where the real property public records are maintained.
The venue of all Florida partition actions is in the county of the property in dispute. (Florida Statute §64.022) If the land overlaps two or more county lines, then you have a choice in which court to file the case.
These cases are lawsuits to divide up the property: the joint owners (who can be joint tenants or tenants in common) are parties to the lawsuit, owner against owner in a dispute to be resolved by the judge. One or more joint owners file the lawsuit against the others. Formal legal process is followed: a complaint is filed, an answer is served, and a trial date is set. (Florida Statutes § 64.041)
Sometimes the partition action is filed in tandem with other legal proceedings, such as a divorce proceeding where husband and wife are joint owners of Florida real estate; estate proceedings where it is deemed necessary to file a partition action for Will beneficiaries; or a business dispute where real estate is part of the property that is part of the controversy of that case. Those cases may be filed nearby, elsewhere in Florida, or even in another state or another country.
What Happens in a Florida Partition Action?
Florida partition lawsuits are only filed when the joint owners haven’t been able to agree on the best way to deal with the land: the goal of the partition action is to sell the property by order of the court, with the Partition itself being either dividing the land into sections that are then awarded as the separate property of each owner (no more joint ownership) or having the real estate sold and then having the money proceeds from the sale split among the joint owners who have been parties to the partition case. (Florida Statute §64.071)
- When will the partition action result in a sale of the property instead of dividing up the land between the joint owners?
Often, when there are improvements on the property like a house, or any kind of income-producing improvements like apartment buildings or office buildings, the court will order the property sold and the proceeds divided among the parties to the partition action.
Usually, each joint owner will be held legally responsible for his proportionate share of the expenses (property taxes, insurance, etc.). If one joint owner has covered more than his fair share, then the court will even things up during the distribution of sales proceeds as a credit. As for attorneys’ fees, these are covered in the Florida Statutes and they are to be paid if the attorney contributed to the partition and sale of the property.
Courts and Partition Actions: Past Rulings in Florida Partition Cases Will Control the New Partition Lawsuit
Judges that preside over the Florida partition actions that come before them do not operate in a vacuum: their decisions will be controlled not only by statute but also by the case precedent (past opinions) in Florida court partition actions that have already happened. Looking to these past decisions for guidance, a Florida Judge may decide that the facts do not allow for a partition even though partition is provided for in the Florida statutes.
For example, the courts have ruled that no partition will take place even if the Florida statutes technically allow the partition if that partition request will result in something that will result in “…manifest injustice, fraud, or oppression.” Condrey v Condrey, 92 So.2d 423, 426 (Fla. 1957).
Additionally, courts have ruled that the facts before them demonstrate that the parties have waived their right to partition either by a settlement agreement or otherwise. See, Oakwood Hills Co. v. Horacio Toledo, Inc., 599 So.2d 1374, 1376 (Fla. 3d DCA 1992).
Sample Partition Lawsuit
We have attached a sample partition lawsuit which provides a true sense of the work involved in a Florida partition case.
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Hallandale Law: Florida Real Estate Lawyers Helping People in Broward County and South Florida
The attorneys at Hallandale Law help people in Broward County, Miami Dade County, and the surrounding areas of South Florida both in filing and defending Florida partition lawsuits.
Florida Partition Actions may be needed for clients that not only reside in Florida but for those who live in another state or a foreign country, since the key to these lawsuits is the location of the property itself. If you have a concern about South Florida property for which you share ownership, then please feel free to contact our offices for a free initial consultation.
Hallandale Law principal and Florida real estate lawyer Larry Tolchinsky is an experienced attorney in South Florida with years of real estate law experience. Please feel free to contact South Florida attorney Larry Tolchinsky today for a free consultation.
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